Portelli and Wymer

[2019] FamCA 543

FAMILY COURT OF AUSTRALIA

PORTELLI & WYMER [2019] FamCA 543

FAMILY LAW – PRACTICE AND PROCEDURE – Review of Senior Registrar’s decision – Change of venue – Where the Senior Registrar dismissed the mother’s application to hear the parenting proceedings at the Melbourne Registry of this Court – Application of the relevant considerations under rule 11.18 of the Family Law Rules 2004 (Cth) – Where the availability of a timely trial in Melbourne was likely to offer the best chance of an early resolution of the proceedings in accordance with the public interest – Where the parties have competing applications as to which State the child will live in – Where it was in the best interests of the child to have his living arrangements resolved as soon as practicable – Where the marginal possible inconvenience and potential additional cost of hearing the proceedings in Melbourne could be accommodated by the parties – Where the Court found it appropriate for the venue to be Melbourne – Review granted.

Family Law Act 1975 (Cth) s 27A
Family Law Rules 2004 (Cth) rr 11.17, 11.18

APPLICANT: Ms Portelli

RESPONDENT: Mr Wymer

FILE NUMBER: SYC 1941 of 2019

DATE DELIVERED: 13 August 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 9 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kearney SC

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Mr North SC

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

1. The Application for review filed on 24 April 2019 is granted.

2. The venue for these proceedings shall be the Melbourne Registry of this Court.

3. The Court Requests that the Registry Manager of the Sydney Registry transmit the papers in proceedings SYC 1941 of 2019 to the Melbourne Registry as soon as practicable to be consolidated with proceedings MLC 3231 of 2019.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Portelli & Wymer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC1941 of 2019

Ms Portelli

Applicant Mother

And

Mr Wymer

Respondent Father

REASONS FOR JUDGMENT

Introduction

1. Before the Court are competing applications in relation to the venue of parenting proceedings in relation to X.  X is three years and nine months of age.

2. By way of review of a decision made by a Senior Registrar on 17 April 2019, the mother seeks that the venue for the proceedings be the Melbourne Registry of the Court and the father proposes that it be Sydney Registry.

3. On 27 March 2019 the mother initiated parenting proceedings in the Melbourne Registry of this Court.  Later that day the father commenced similar proceedings in Sydney.  In the parenting proceedings there are competing residence applications but relevantly, there is a disputed issue as to whether X’s main residence should be in Sydney or Melbourne.

4. On 17 April 2019, a Senior Registrar heard proceedings in respect of interim parenting arrangements and venue.  On that date orders were made including that the mother cause X to return to live in Sydney and that the Melbourne proceedings be dismissed.  The effect of the latter order was to fix Sydney as the venue for the proceedings.

5. On 24 April 2019 the mother filed an Application in a Case seeking a review of the orders of 17 April 2019 but only in respect of venue.  That application was listed for hearing on 9 August 2019.  That application will be granted and the venue for the proceedings will be the Melbourne Registry of this Court.  What follows are the reasons for that decision.

The Hearing

1. When the matter was called on 9 August 2019 Mr Kearney SC appeared for the mother and Mr North SC, for the father.  I was taken to the relevant evidence, learned senior counsel referred to their written arguments and made oral submissions.  Judgment was then reserved.

Background Facts

1. The father is 41 years of age and the mother is 38.  I gather that they are both Australian citizens. 

2. The parents met in 2004, commenced a relationship in 2005, started living together in 2007 and were married in 2014.  It is the father’s contention that the parties separated on 27 March 2019.  The mother asserts that the separation occurred on 12 March 2019.

3. Although there was significant travel, at all relevant times the parties lived in Sydney.  Since 2013 they have lived in Suburb K, an inner suburb of Sydney.

4. X was born in 2015.

Relevant Law

1. A review of the decision of a registrar, including the Senior Registrar, proceeds by hearing de novo.  Therefore I am to hear afresh the competing applications about venue that were heard and determined on 17 April 2019.  There is reference in the father’s material to the advantages of the Parramatta Registry as a venue but I do not recall seeing an application to change the venue to that Registry.

2. The venue of proceedings is referred to in section 27A of the Family Law Act 1975 (Cth) and in rule 11.17 of the Family Law Rules 2004 as follows:

   FAMILY LAW ACT 1975 - SECT 27A

   Change of venue

   The Court or a Judge may, at any stage of a proceeding in the Court, direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes.

   FAMILY LAW RULES 2004 - RULE 11.17

   Transfer to another court or registry

   A party may apply to have a case:

   (a)heard at another place; or

   (b)transferred to another registry or court exercising jurisdiction under the Act.

3. Without seeking to limit the relevant considerations, rule 11.18 sets out matters that the Court may consider, as follows:

   FAMILY LAW RULES 2004 - RULE 11.18

   Factors to be considered for transfer

   (1)In making a decision under rule 11.17 or in deciding whether to remove a case from another court under subsection 46(3A) of the Act, the court may consider:

   (a)the public interest;

   (b)whether the case, if transferred or removed, is likely to be dealt with:

   (i)at less cost to the parties;

   (ii)at more convenience to the parties; or

(iii)earlier;

(c)the availability of a judicial officer specialising in the type of case to which the application relates;

(d)the availability of particular procedures appropriate to the case;

(e)the financial value of the claim;

(f)the complexity of the facts, legal issues, remedies and procedures involved;

(g)the adequacy of the available facilities, having regard to any disability of a party or witness, and any safety concerns; and

(h)the wishes of the parties.

Note: Subsection 33B(6) of the Act provides that, in deciding whether a case should be transferred to the Federal Circuit Court, the court must have regard to:

(a)any rules of the court applying to the transfer of cases;

(b)whether cases in respect of an associated matter are pending in the Federal Circuit Court;

(c)whether the resources of the Federal Circuit Court are sufficient to hear and determine the case; and

(d)the interests of the administration of justice.

(2)Subrule (1) does not apply to:

(a)a case raising, or relying on, a cross-vesting law in which a party objecting to the case being heard in the Family Court applies to have the case transferred to another court;

(b)the transfer of a case under the Corporations Act 2001 ; or

(c)a case that must be transferred in accordance with a legislative provision.

Note: Division 4.2.2 deals with cross-vesting laws and Chapter 25 deals with cases under the Corporations Act 2001.

Discussion

1. It must be said that the proceedings could be conducted in either Melbourne or Sydney.  The factors favouring one or the other are mainly of marginal effect.

2. Of the rule 11.18 considerations, (c) to (h) inclusive have no relevant application to the circumstances of this case in that those considerations do not help to distinguish between the parties’ proposals.

3. As to (b), it is impossible to be confident about the cost, convenience or timeliness of the proceedings in Sydney or Melbourne.  In each case the impact of those factors for these proceedings will be affected by the stage at which the proceedings are concluded. 

4. It is common ground that a final hearing would likely be available at a significantly earlier date in Melbourne than in Sydney.  It is estimated that, subject to the provision of an expert’s report, a final hearing could be conducted in Melbourne later this year or in early 2020.  I gather from the oral submissions that it is accepted that a Sydney trial would likely be heard after 2020.  I am the case management judge in Sydney and am able to confirm the position accepted by the parties.  Unlike the Melbourne Registry, in Sydney there is a backlog of cases represented by something of the order of 250 matters that have completed the settlement phase of the case management pathway and are waiting for allocation to a judge for trial. 

5. However, the estimated time to trial is unlikely to be relevant of itself.  The overwhelming proportion of proceedings, including parenting proceedings, do not proceed to trial.  Something like 85 percent of cases are determined other than by judgment after a contested hearing.  A parenting outcome achieved by agreement is not only the usual outcome, it usually carries with it the best chance of meeting the interests of a child.  Unlike most other civil litigation, those involved in parenting proceedings are normally required to closely interact on a regular basis after the proceedings and for many years into  the future.  In that context something that the parties have designed for their children is more likely to meet the needs of everyone concerned than something imposed on the family by a court.  It is for that reason that every effort is made to encourage a consensual resolution of parenting proceedings.

6. That said, the unfortunate enthusiasm with which these proceedings have commenced does not augur well for a consensual conclusion to the matter.  There have been several interlocutory hearings and the mandatory pre-filing and preliminary services including through a Family Relationship Centre, appointments with a Family Consultant or private counsellor have either been avoided or have proved unsuccessful.  It may be that unlike the situation in most proceedings, X’s parents will surrender the determination of his living arrangements to the Court.

7. Even with those qualifications, this consideration would favour the Melbourne Registry being the venue of the proceedings.  The apprehension of an upcoming trial does encourage settlement in some matters and the earlier the trial, the earlier that effect will occur.  Putting it the other way, waiting for months or years in a backlog of cases is not likely to provide the best incentive for focussed settlement discussions.  During such a wait, parents can get on with their lives and lawyers can put the file away.

8. As to the cost of the proceedings, a final trial in Melbourne would probably be more expensive for this family than one in Sydney.  Both parents live in Sydney and the expert would need to do interviews in Sydney but would probably be cross-examined in Melbourne.  There may be no significant difference but if any, the number of non-party lay witnesses based in Sydney would probably be greater than those based in Melbourne.

9. However, as a general proposition the earlier the proceedings can be concluded, the lower the potential costs of the proceedings.  A longer time to final hearing leaves the parties and X exposed to the risk of more interlocutory proceedings and other forensic interventions such as the risk of further expert reports.  Although this consideration is probably aimed exclusively at financial cost, the cost of the proceedings goes beyond financial cost.  There is likely to be an emotional drain on the parents from the stress of the proceedings, from various events in the litigation and waiting for progress.  Through them, the child can be adversely affected.  The interviews for a family report, particularly if they need to be repeated for an updated report, can also be stressful for the adults and child. 

10. If, as is likely, the proceedings are concluded before trial, the consideration of cost is likely to favour the venue being Melbourne.  If the matter requires a trial then the Sydney Registry may be the less expensive forum.  However, when weighing the competing considerations, it must be borne in mind that each of the parents has access to very substantial financial resources.  Indeed the mother deposed that, were it necessary, she is willing to contribute to costs associated with the proceedings being conducted in Melbourne.  I doubt that such a contribution would become necessary or that cost will be a relevant consideration.  It is notable, for example, that the parties have both engaged senior counsel for each of the interlocutory hearings. 

11. As to convenience, the common ground facts suggest that it would be more convenient for the parents to litigate in Sydney.  They both live in Sydney and because of that fact, any relevant professional witnesses (such as treating practitioners) are likely to be based there.  It is likely to be more convenient to arrange for those of the relevant witnesses who live in Sydney to attend on lawyers and at court there.  The father is a busy executive and his work is based in Sydney.  The father has family members, including his parents, in Sydney.  Although he is able to travel interstate and overseas, it is his evidence that he plans such travel well in advance so as to accommodate his work.  I gather that there are business obligations of the mother that are regularly undertaken in Melbourne.  The mother has family members in Melbourne, including her father and step mother.

12. The mother elected to instruct the Melbourne office of a firm of lawyers and to institute proceedings there.  In my view, however, because the parties and X live in Sydney, the natural and obvious venue for the proceedings is Sydney.  Again, the question of convenience is only relevant to a trial and there may never be one.  Even then, while the parties would likely attend a trial in person, increasingly, provision is made by courts for witnesses to give their evidence remotely, by media such as telephone or Skype.  The so-called ‘advantage’ of observing witnesses in person can be exaggerated and it is common for expert witnesses to give their evidence by electronic means.

13. As to the public interest, I can see no public interest in anything other than a timely resolution.  The unfortunate reality is that for the time being, the Court’s workload is not distributed in a way that matches its resources.  That can occur, for example, where retiring judges are not replaced or where there is a delay in such replacements.  Once substantial backlogs exist in one registry in a national court spread over eight major cities, it is difficult for the Court or for that matter, for executive government to quickly adjust those resources.  The only remedy available to the Court is to send judges and if necessary, support staff from one registry to hear cases in another.  That involves significant administrative cost and is not financially sustainable as a medium or long term strategy.  It is rarely feasible for proceedings to be sent from one registry to another.  However, there is that opportunity here.

14. Also in respect of the public interest, there is no evidence that the proceedings being conducted in Melbourne will add to the delays experienced by parties and children involved in proceedings already filed there.  The loss of the proceedings from the Sydney list can only advantage those waiting in the lists in that Registry.

15. It is likely to be in X’s best interests for the dispute about his living arrangements to be resolved before he starts school and as soon as practicable.  Even though a trial may not be required, the availability of a timely trial in Melbourne is likely to offer the best chance of an early resolution of the proceedings.  In any event it is likely to offer an earlier resolution than would be available in Sydney.  The marginal possible inconvenience to the parties of a Melbourne venue can be managed by them and by the Court and the potential additional cost can be accommodated by these parents.

16. On balance the venue of the proceedings should be the Melbourne Registry of this Court.

I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 13 August 2019.

Associate: 

Date:  13 August 2019